IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Benjamin Hendricks, :

Plaintiff, :

v. : Case No. 2:12-cv-729

 : JUDGE MICHAEL H. WATSON

John Kasich, et al., Magistrate Judge Kemp

Defendants. :

ORDER

This matter is before the Court on Benjamin Hendricks’

motion to amend the complaint. Defendants Andrew Eddy, John

Gardner, and Gary Mohr have filed a response and the motion has

been fully briefed. For the following reasons, the motion to

amend will be granted in part and denied in part.

I. Background

This case originally was filed by Mr. Hendricks and Robert

Austin as a putative class action naming several defendants

including Ohio Governor John Kasich, Gary Mohr, Andrew Eddy, John

Gardner, Mona Parks, Dr. Hale, Dr. Khan, Anthony Ayres, and 50

John/Jane Doe defendants. It was assigned to Magistrate Judge

Abel for an initial screening. By Report and Recommendation

issued October 23, 2012, Magistrate Judge Abel directed the Clerk

to open a separate case for Mr. Austin and recommended that

defendants Parks, Hale, Khan, and Ayres be dismissed because the

complaint failed to state a claim against them. After the cases

were severed, this case was reassigned to the undersigned

Magistrate Judge based on its relation to pending cases 2:11-cv399 and 2:11-cv-40. 

Governor Kasich and Mr. Hendricks both objected to the

Report and Recommendation. Governor Kasich also filed a motion

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to dismiss. By order dated May 21, 2013, the Court adopted the

Report and Recommendation and granted Governor Kasich’s motion to

dismiss. As it relates to the current motion, the order affirmed

that the complaint failed to state a claim against defendants

Parks, Hale, Khan and Ayres because there were no allegations

that these defendants played a role in any denial of Mr.

Hendricks’ medical treatment. Further, with respect to some of

Mr. Hendricks’ claims, the Court found that the complaint failed

to give fair notice of the claims to any named defendant. The

order also denied Mr. Hendricks’ motion to amend, citing to then

controlling Sixth Circuit precedent which held that a complaint

subject to screening could not be amended to avoid dismissal

under 1915(e) and 1915A. 

Mr. Hendricks filed a motion for relief from judgment on

July 25, 2013. On September 6, 2013, he filed a motion to

withdraw that motion and replace it with a motion to amend the

complaint. On March 31, 2014, the Court issued an order granting

in part the motion for leave to withdraw to the extent that Mr.

Hendricks sought to withdraw his motion for relief from judgment. 

That order did not address the merits of Mr. Hendricks’ motion

for leave to amend. 

II. Legal Standard

In LaFountain v. Harry, 716 F.3d 944 (6th Cir. 2013), the

Court of Appeals for the Sixth Circuit overruled, in part, McGore

v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), which had long

held that, when the Prison Litigation Reform Act requires

dismissal of a prisoner’s claim, a district court cannot grant

leave to amend. In LaFountain the Court of Appeals expressly

held that “under Rule 15(a) a district court can allow a

plaintiff to amend his complaint even when the complaint is

subject to dismissal under the PLRA.” Id. at 951. Consequently,

the Court will evaluate Mr. Hendricks’ motion to amend under the

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standards set forth in Rule 15(a).

Fed.R.Civ.P. 15(a)(2) states that when a party is required

to seek leave of court in order to file an amended pleading,

“[t]he court should freely give leave when justice so requires." 

The United States Court of Appeals for the Sixth Circuit has

spoken extensively on this standard, relying upon the decisions

of the United States Supreme Court in Foman v. Davis, 371 U.S.

178 (1962) and Zenith Radio Corp. v. Hazeltine Research, Inc.,

401 U.S. 321 (1971), decisions which give substantial meaning to

the phrase "when justice so requires." In Foman, the Court

indicated that the rule is to be interpreted liberally, and that

in the absence of undue delay, bad faith, or dilatory motive on

the part of the party proposing an amendment, leave should be

granted. In Zenith Radio Corp., the Court indicated that mere

delay, of itself, is not a reason to deny leave to amend, but

delay coupled with demonstrable prejudice either to the interests

of the opposing party or of the Court can justify such denial. 

 Expanding upon these decisions, the Court of Appeals has

noted that:

 [i]n determining what constitutes prejudice, the

 court considers whether the assertion of the new

 claim or defense would: require the opponent to

 expend significant additional resources to conduct

 discovery and prepare for trial; significantly

 delay the resolution of the dispute; or prevent

 the plaintiff from bringing a timely action in

 another jurisdiction.

Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994) (citing

Tokio Marine & Fire Insurance Co. v. Employers Insurance of

Wausau, 786 F.2d 101, 103 (2d Cir. 1986)). See also Moore v.

City of Paducah, 790 F.2d 557 (6th Cir. 1986); Tefft v. Seward,

689 F.2d 637 (6th Cir. 1982). Stated differently, deciding if

any prejudice to the opposing party is “undue” requires the Court

to focus on, among other things, whether an amendment at any

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stage of the litigation would make the case unduly complex and

confusing, see Duchon v. Cajon Co., 791 F.2d 43 (6th Cir. 1986)

(per curiam), and to ask if the defending party would have

conducted the defense in a substantially different manner had the

amendment been tendered previously. General Electric Co. v.

Sargent and Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990); see also

Davis v. Therm-O-Disc, Inc., 791 F. Supp. 693 (N.D. Ohio 1992).

 The Court of Appeals has also identified a number of

additional factors which the District Court must take into

account in determining whether to grant a motion for leave to

file an amended pleading. They include whether there has been a

repeated failure to cure deficiencies in the pleading, and

whether the amendment itself would be an exercise in futility. 

Robinson v. Michigan Consolidated Gas Co., 918 F.2d 579 (6th

Cir.1990); Head v. Jellico Housing Authority, 870 F.2d 1117 (6th

Cir.1989). The Court may also consider whether the matters

contained in the amended complaint could have been advanced

previously so that the disposition of the case would not have

been disrupted by a later, untimely amendment. Id. 

III. The Motion to Amend

Mr. Hendricks’ motion to amend, like most of Mr. Hendricks’

filings in this Court, contains a very lengthy and highly

detailed recitation of generally relevant legal principles

complete with a multitude of footnotes. However, it contains a

very minimal discussion of how these legal principles apply to

his particular case. Here, for example, Mr. Hendricks does not

explain in his motion what his specific proposed amendments are,

but leaves the Court and the opposing parties with the task of

parsing them out of the thirteen-page proposed amended complaint

on their own. The Court’s review of the proposed amended

complaint reveals the following. 

Mr. Hendricks seeks to add four previously unnamed

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defendants - Steve Huffman, Stuart Hudson, Christine Hall, and

Dr. Christiansen, also referred to as Dr. Christenson. He also

seeks to revive his previously dismissed claims in this case

relating to his medical conditions, which are exceedingly welldocumented in the records of this Court, including a shoulder

prosthesis, ventral and parastomal hernias, pain management,

Crohn’s disease and diversion colitis. The Court’s reading of

the proposed amended complaint is borne out by Mr. Hendricks’

reply which contains, in response to defendants’ opposition, his

more specific intentions in seeking to amend. 

Defendants have opposed Mr. Hendricks’ proposed amendments

on futility grounds. They contend that Mr. Hendricks has failed

to state plausible claims for relief and that he has pled nothing

more than legal conclusions with respect to many of his claims. 

The Court will examine the proposed amendments in detail below.

A. The Proposed New Defendants

With respect to proposed defendants Huffman, alleged to be

the Assistant Director of the ODRC, and Hudson, alleged to be the

Chief of the ODRC Bureau of Medical Services, the proposed

amended complaint contains the following allegations at

paragraphs 11 and 12:

... Defendant ... ordered the ODRC/PCI medical staff to

stop all hospital trips and surgeries unless it

concerned a life or death situation. This general

policy was part of a cost-saving approach and resulted

in the denial of medical treatment. Defendant ... at

least caused, created, authorized, condoned, ratified,

ordered, approved, and/or knowingly acquiesced in the

illegal, unconstitutional, and inhumane conditions,

actions, policies, customs, and/or practices alleged in

this complaint. Furthermore, even assuming Defendant

.. . was unaware of Hendricks’ specific situation, such

a policy creates significant risks for prison inmates

in general. 

Mr. Hendricks also has proposed an amendment relating to his

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allegations directed to Gary Mohr. Paragraph 10 of the

proposed amended complaint makes the same allegations against

Mr. Mohr as set forth above. These allegations are somewhat

different than those made against Mr. Mohr in the original

complaint.

With respect to proposed defendants Hall and Christiansen, 

the proposed amended complaint contains the following allegations

at paragraphs 17 and 18:

... Defendant ... is a member of the “Collegial

Review” team. Defendant ... ordered the ODRC/PCI

medical staff to stop all hospital trips and surgeries

unless it concerned a life or death situation. This

general policy was part of a cost-saving approach and

resulted in the denial of medical treatment. Defendant

... at least caused, created, authorized, condoned,

ratified, ordered, approved, and/or knowingly

acquiesced in the illegal, unconstitutional, and

inhumane conditions, actions, policies, customs, and/or

practices alleged in this complaint. Furthermore, even

assuming Defendant was unaware of Hendricks’ specific

situation, such a policy creates significant risks for

prison inmates in general.

B. Eighth Amendment Claims

With respect to his proposed amendments to revive his claims

regarding his numerous medical conditions, Mr. Hendricks seeks to

pursue these claims against previously dismissed defendants

Arthur Hale, Inam Khan, and Anthony Ayres as well as newly

proposed defendants Hall and Christiansen. Mr. Hendricks does

not appear to be attempting to amend his complaint to include any

claims against previously dismissed defendant Mona Parks. The

Court will examine the proposed amendments relating to each of

Mr. Hendricks’ medical conditions one by one.

 i. Shoulder Prosthesis

Mr. Hendricks’ allegations regarding his left shoulder

prosthesis are set forth in paragraphs 31 through 40 of the

original complaint. The relevant allegations are set forth in

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paragraphs 22 through 35 of the proposed amended complaint. The

proposed amendments appear in paragraphs 29 through 35, and are

intended to replace paragraphs 38 through 40 of the original

complaint. The relevant paragraphs in the original complaint

state as follows:

38) After two (2) years of complaints and being told

that it was his own fault and his shoulder was still

not repaired, Hendricks finally had a “meeting” with

Tony Ayres (H.C.A./M.O.M. at Pickaway Correctional

Institution), Connie Ostrander (Nurse Supervisor at

Pickaway Correctional Institution), Missy Rousch

(Q.I.C. at Pickaway Correctional Institution), Dr. Khan

(Treating Physicial at Pickaway Correctional

Institution), and Dr. Hale (Chief Medical Officer at

Pickaway Correctional Institution) and was informed

that his shoulder was deemed inoperable by Defendants

Eddy and Gardner. 

39) Hendricks informed them that this was not

completely true and told them about his prior consults,

who the surgeon was that performed the original surgery

in 2002, the name of the implant, and even offered to

provide them with the surgical report of his orthopedic

history.

40) Hendricks was told that the problem would be

“looked into” and he would be informed about a decision

when was made which was subsequently denied.

The Court previously held that Mr. Hendricks’ allegations

regarding his shoulder prosthesis stated a claim against

defendants Eddy and Gardner but did not state a claim against

defendants Ayres, Khan, or Dr. Hale. In an effort to remedy this

deficiency, Mr. Hendricks has included additional allegations in

his proposed amended complaint. These allegations are as

follows:

29) After two years of complaints, pain, instability,

and numerous dislocations Hendricks had a meeting with

Defendants Hale, Khan, Ayres, and non-parties Connie

Ostrander and Mary Rousch to discuss his various

medical ailments and treatments.

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30) Hendricks was informed that during collegial review

meetings, Defendants Gardner, Eddy, Hall, Christenson,

Hale, Khan, and Ayres decided that Hendricks was not

amenable for surgery and instituted an Alternate Plan

of Care (“Alt. POC”) which amounts to no treatment at

all.

31) Hendricks informed Defendants Hale, Khan, Ayres,

and non-parties Connie Ostrander and Mary Rousch that

if his injury is not addressed soon, among other

complications, his shoulder injuries may not be

repairable.

32) Hendricks told them of his prior surgery in 2002

and offered copies of the surgical report and his

orthopedic history from prior to his incarceration and

was told they were not relevant to the current medical

problem.

33) Hendricks informed Defendants Hale, Khan, Ayres,

and non-parties Connie Ostrander and Mary Rousch that

he had serious concerns of permanent physical injury if

surgery was not performed and he was told that they

would again look into the problem.

34) Hendricks was subsequently informed that Defendants

Gardner, Eddy, Hall, Christenson, Hale, Khan and Ayres

had again denied surgical intervention and decided on

the same Alt. POC which amounts to no treatment at all

contrary to Ohio Administrative Code (“OAC”) 5120-9-60.

35) Hendricks was later informed by another physician

that, but for the fact of his incarceration, his

shoulder would have been repaired some time ago and

more than likely he would have to wait until after he

was released from prison.

 ii. Crohn’s Disease

Mr. Hendricks’ allegations relating to his Crohn’s disease

are set forth in paragraphs 41 through 47 of the original

complaint. The Court previously held that Mr. Hendricks’

allegations regarding his Crohn’s disease did not include the

dates he sought treatment, the date treatment was denied, or the

identity of the persons denying him treatment. Further, the

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Court held that the allegations did not state a claim against

defendants Ayres, Khan or Hale for the denial of medical

treatment because they merely informed him of an upcoming

teleconference to determine a course of treatment. Mr.

Hendricks’ revised allegations relating to his Crohn’s disease

are set forth in paragraphs 36 through 50 of his proposed amended

complaint. 

Paragraphs 36 through 44 of the proposed amended complaint

more or less reiterate the allegations relating to this claim in

the original complaint, with some additional medical explanation

included. The more substantive proposed amendments appear to be

additional allegations and are set forth in paragraphs 45 through

50 and state as follows:

45) Hendricks eventually saw Dr. Edward Levine over

Tele-conference and testing was ordered to determine a

course of treatment.

46) Dr. Levine ordered a flexible sigmoidoscopy, EGD,

and ileoscopy to check the status and extent of

Hendricks’ disease which were finally followed through

with in addition to a “capsule study.”

47) Hendricks was initially informed by Defendant Hale

that everything was “perfectly within normal limits”

with the exception of an anal stricture and that the

capsule study showed “nothing significant.”

48) Months later Hendricks again saw Dr. Levine over

Tele-conference where he was informed that the testing

and capsule study was not within the normal limits and

in fact showed ulceration in his small intestines

consistent with Crohn’s disease contrary to Defendant

Hale’s earlier assertion and ordered Humira/adalimumab

for treatment in addition to a surgical consult with

Dr. Harzman(?) for either ileal-anal anastomosis or

proctectomy to address issues/problens with Diversion

Colitis.

49) A couple of days later Hendricks saw Dr. Hale to

discuss the Tele-conference with Dr. Levine and was

informed that there was little to no chance of himself,

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Gardner, Eddy, Hall, Christenson, and Ayres approving

this course of treatment and that more likely an Alt.

POC would be ordered which amounts to no treatment at

all contrary to OAC 5120-9-60.

50) Surprisingly, Hendricks was finally approved for

the treatment of his Crohn’s disease with

Humira/adalimumab for ninety (90) days and an order was

placed with the pharmacy for the Humira/adalimumab

thereby hopefully ending the pain, suffering, bleeding,

and other medical complications he has suffered at the

hands of Defendants Gardner, Eddy, Hall, Christenson,

Hale, Khan, Ayres and John/Jane Does for which he is

entitled to damages. 

 iii. Diversion Colitis

Mr. Hendricks’ allegations regarding his diversion colitis

are set forth in paragraphs 48 through 53 of the original

complaint. The Court previously concluded that Mr. Hendricks’

allegations did not include the dates he sought and was refused

enemas to treat this condition or the name of the person who

denied him the treatment prescribed by the specialist. Mr.

Hendricks has set forth his claim relating to his diversion

colitis at paragraphs 60 through 69 of the proposed amended

complaint. Paragraphs 60 through 65 provide some additional

factual detail not contained in the original complaint but the

more substantive proposed amendments begin with paragraph 65 of

the proposed amended complaint. These proposed amendments state

as follows:

65) After this was resolved enough to allow treatment,

Defendants Hale and Khan informed Hendricks that

Defendants Gardner, Eddy, Hall, Christenson and

John/Jane Doe decided against resuming treatment due to

“cost and availability” of the short-chain fatty acid

enemas.

66) Hendricks has continued to suffer pain bleeding,

cramps, etc., due to no treatment being provided and

Dr. Levine decided to have Hendricks consult with Dr.

Harsman(?) for either ileal-anal anastomosis or

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proctectomy to address issues/problems with Diversion

Colitis.

67) A couple days later Hendricks saw Defendant Hale to

discuss the Tele-conference with Dr. Levine and was

informed that there was little to no chance of himself,

Gardner, Eddy, Hall, Christenson, and Ayres approving

this course of treatment and that more than likely an

Alt. POC would be ordered which amounts to no treatment

at all contrary to OAC 5120-9-60.

68) Hendricks was finally approved for the surgical

consult with Dr. Harsman thereby hopefully ending the

pain, suffering, bleeding, and other medical

complications he has suffered at the hands of

Defendants Gardner, Eddy, Hall, Christenson, Hale,

Khan, Ayres, and John/Jane Doe for which he is entitled

to damages.

69) Hendricks was finally scheduled for the specialty

consult and was mistakenly sent to the general surgery

clinic before he had seen Dr. Harsman but was also

informed by the surgery team that he needed to consult

with a respiratory therapist prior to surgery and Dr.

Saul (non-party) submitted the specialty consult for

approval by Defendants Gardner, Gardner, Hall,

Christenson, Hale, Ayres, and John/Jane Doe.

 iv. Ventral and Parastomal Hernias

Mr. Hendricks’ allegations regarding his ventral and

parastomal hernias are set forth at paragraphs 54 through 59 of

his original complaint. The Court previously held that Mr.

Hendricks had stated a claim only against defendant Gardner but

not defendants Parks, Ayres, Khan or Hale for the denial of

treatment for his hernias. The allegations of the proposed

amended complaint seeking to set forth a claim against defendants

in addition to defendant Gardner are set forth at paragraphs 51

through 59. Paragraphs 51 through 54 of the proposed amended

complaint essentially reiterate paragraphs 54 through 58 of the

original complaint with minor additions. Paragraph 59 of the

original complaint states as follows:

59) Again, after several more complaints, Hendricks

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finally had a “meeting” with Tony Ayres (H.C.A./M.O.M.

at Pickaway Correctional Institution), Connie Ostrander

(Nurse Supervisor at Pickaway Correctional

Institution), Missy Rousch (Q.I.C. at Pickaway

Correctional Institution), Dr. Khan (Treating Physician

at Pickaway Correctional Institution), and Dr. Hale

(Chief Medical Officer at Pickaway Correctional

Institution) and was informed that a specialty consult

would again be submitted which was denied again.

The above paragraph is deleted from the proposed amended

complaint and the following paragraphs have been added:

55) After two years of complaints and pain Hendricks

had a meeting with Defendants Hale, Khan, Ayres, and

non-parties Connie Ostrander and Mary Rousch to discuss

his various medical ailments and treatments.

56) Hendricks was informed that during the collegial

review meetings, Defendants Garnder, Eddy, Hall,

Chrisenson, Hale, Khan and Ayres decided that Hendricks

was not amenable for surgery and instituted an Alt. POC

which amounts to no treatment at all. 

57) Hendricks informed Defendants Hale, Khan, Ayres,

and non-parties Connie Ostrander and Mary Rousch that

if his injury is not addressed he would experience

further pain and other serious complications due to his

untreated Crohn’s disease which could result in

strangulation.

58) After yet further complaints and Emergency Room

visits at OSUMC Hendricks was informed again that

Defendants Gardner, Eddy, Hall, Christenson, Hale, Khan

and Ayres decided that Hendricks was not amenable for

surgery and instituted the same Alt. POC which amounts

to no treatment at all.

59) Hendricks was later informed by another physician

that, but for his incarceration, his hernias would have

been repaired some time ago.

 v. Pain Management

Mr. Hendricks’ allegations regarding his pain management are

set forth in paragraphs 60 through 64 of his original complaint

and paragraphs 70 through 75 of his proposed amended complaint. 

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The gist of these allegations is that Mr. Hendricks suffers from

several painful medical conditions and that, as a result of these

conditions and several others, there is “little to nothing on

formulary available for pain management that [he] is able to

take.” The allegations of the original complaint were found to

be insufficient to state a claim against defendants Ayres, Khan

or Hale because there were no allegations that pointed to conduct

which denied Mr. Hendricks consult with a pain specialist or that

otherwise denied him treatment for serious medical needs. Mr.

Hendricks sets forth the following allegations in his proposed

amended complaint to address this deficiency:

71) Because of his extensive allergies, Crohn’s

disease, and a positive diagnosis of Stevens - Johnson

Syndrome there is little to nothing on “formulary”

available for pain management that Hendricks is able to

take and Defendants Gardner, Eddy, Hall, Christenson,

Hale, Khan, and Ayres have refused to provide/approve

non-formulary medications.

72) As such, several physicians at PCI have referred

Hendricks for a specialty consult to the Pain Clinic at

CMC in an attempt to manage his pain caused by his

numerous medical ailments.

73) These consults were denied with no explanation

being provided after two years of complaints and pain

Hendricks had a meeting with Defendants Hale, Khan,

Ayres, and non-parties Connie Ostrander and Mary Rousch

to discuss his various medical ailments and treatments.

74) Hendricks was informed again that during the

collegial review meetings that Defendants Gardner,

Eddy, Hall, Christenson, Hale, Khan, and Ayres decided

to deny the Pain Clinic consult for Hendricks and

instituted an Alt. POC of Neurontin which amounts to no

treatment at all.

75) Hendricks has continued to complain about pain and

has been continuously informed that Defendants Garnder,

Eddy, Hall, Christenson, Hale, Khan, and Ayres decided

to deny the Pain Clinic consults and instituted an Alt.

POC of Neurontin which amounts to no treatment at all. 

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IV. Analysis

A. Futility Standard 

As noted above, defendants challenge Mr. Hendricks’ proposed

amendments on grounds of futility. There is some conceptual

difficulty presented when the primary basis for a party’s

opposition to the filing of an amended pleading is that the

pleading is futile, i.e. that it fails to state a claim upon

which relief can be granted. A Magistrate Judge cannot

ordinarily rule on a motion to dismiss, see 28 U.S.C.

§636(b)(1)(A), and denying a motion for leave to amend on grounds

that the proposed new claim is legally insufficient is, at least

indirectly, a ruling on the merits of that claim.

At least where the claim is arguably sufficient, it is

usually a sound exercise of discretion to permit the claim to be

pleaded and to allow the merits of the claim to be tested before

the District Judge by way of a motion to dismiss. Even a

District Judge may choose to adopt this approach: “The trial

court has the discretion to grant a party leave to amend a

complaint, even where the amended pleading might ultimately be

dismissed.” Morse/Diesel, Inc. v. Fidelity and Deposit Co. of

Md., 715 F.Supp. 578, 581 (S.D.N.Y. 1989). Consequently, rather

than determining the actual legal sufficiency of the new claim,

in many cases it will suffice to determine if there is a

substantial argument to be made on that question and, if so, to

allow the amended pleading to be filed with the understanding

that a motion to dismiss for failure to state a claim may follow.

“A proposed amendment is futile if the amendment could not

withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford

Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). A

motion to dismiss under Rule 12(b)(6) attacks the legal

sufficiency of the complaint. See Roth Steel Prods. v. Sharon

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Steel Co., 705 F.2d 134, 155 (6th Cir. 1983). A complaint must

be construed in the light most favorable to the plaintiff and all

well-pleaded facts must be accepted as true. However, a

plaintiff must allege “more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will

not do....” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). 

Moreover, the factual allegations themselves “must be enough to

raise a right to relief above the speculative level ....” Id. 

The Twombly plausibility standard applies to dismissals of prison

cases on initial review under 28 U.S.C. 1915(e)(2)(B)(i). Hill

v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). Applying this

standard in the context of a motion to amend, a proposed

amendment is futile if it does not plead “enough facts to state a

claim to relief that is plausible on its face.” Id. at 570. 

B. Eighth Amendment Standard

The legal principles applicable to Mr. Hendricks’ numerous

claims regarding the alleged denial of medical treatment are well

settled. To establish an Eighth Amendment violation, a prisoner

must show that he or she has a serious medical condition and

that the defendants displayed a deliberate indifference to

his or her health. Estelle v. Gamble, 429 U.S. 97 (1976);

Wilson v. Seiter, 501 U.S. 294 (1991). This formulation has both

a subjective and an objective component. Objectively, the

medical condition at issue must be “serious” as opposed to

“trivial,” “minor,” or “insubstantial.” Subjectively, the

defendants accused of violating the Eighth Amendment must have

acted with a state of mind that can accurately described as

“deliberate indifference.” Each of these components requires

some elaboration.

It is not always easy to distinguish serious medical

conditions from those that are not sufficiently substantial to

implicate the Constitutional prohibition against cruel and

unusual punishment, and the facts concerning the seriousness of

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an inmate’s condition are frequently in dispute. In evaluating

such claims, courts have given weight to a variety of factors,

including whether the condition is one that a doctor or other

health care professional would find worthy of treatment, whether

it significantly affects everyday activities, and whether it

causes (or, if left untreated, has the potential to cause)

chronic and substantial pain. See Chance v. Armstrong, 143 F.3d

688, 702-03 (2d Cir. 1998); see also Harrington v. Grayson, 811

F.Supp. 1221 (E.D. Mich. 1993)(focusing on the severity of the

condition, the potential for harm if treatment is delayed, and

whether such a delay actually caused additional harm). 

Under some circumstances, expert testimony may be needed to

establish the seriousness of a medical condition, particularly if

the inmate’s claim is founded upon an unreasonable delay in

treatment. See Napier v. Madison Co., Ky., 238 F.3d 739 (6th

Cir. 2001). In other cases, however, when the condition does not

involve “minor maladies or non-obvious complaints of a serious

need for medical care,” but rather “an obvious need for medical

care that laymen would readily discern as requiring prompt

medical attention by competent health care providers,” expert

testimony is not essential to a finding that a serious medical

condition is present. Blackmore v. Kalamazoo County, 390 F.3d

890, 898 (6th Cir. 2004).

As to the subjective element, in Farmer v. Brennan, 511 U.S.

825, 839 (1994), the Court adopted "subjective recklessness as

used in the criminal law" as the appropriate definition for

deliberate indifference. It held that "a prison official cannot

be held liable under the Eighth Amendment for denying an inmate

humane conditions of confinement unless the official knows of and

disregards an excessive risk to inmate health or safety. . . ."

Id. at 837. Officials must be aware of facts from which they

could conclude that a substantial risk exists and must actually

draw that conclusion. Id. Prison officials who know of a

substantial risk to the health or safety of an inmate are free

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from liability if "they responded reasonably to the risk, even if

the harm ultimately was not averted." Id. at 844.

 Because an Eighth Amendment medical claim must be

premised on deliberate indifference, mere negligence by a

prison doctor or prison official with respect to medical

diagnosis or treatment is not actionable under 42 U.S.C.

§1983. "[A] complaint that a physician has been negligent in

diagnosing or treating a medical condition does not state a

valid claim of medical mistreatment under the Eighth

Amendment. Medical malpractice does not become a

constitutional violation merely because the victim is a

prisoner." Estelle v. Gamble, 429 U.S. 97, 106 (1976); see

also Brooks v. Celeste, 39 F.3d 125 (6th Cir. 1994). The Court

will examine each of Mr. Hendricks’ claims relating to his

medical conditions under this standard.

C. Medical Claims

 In addressing Mr. Hendricks’ claims regarding the alleged

denial of medical care, in addition to the above standards, the

Court is mindful that the Sixth Circuit Court of Appeals

distinguishes “between cases where the complaint alleges a

complete denial of medical care and those cases where the claim

is that a prisoner received inadequate medical treatment. Where

a prisoner has received some medical attention and the dispute is

over the adequacy of the treatment, federal courts are generally

reluctant to second guess medical judgments and to

constitutionalize claims which sound in state tort law.” 

Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976). “A

patient’s disagreement with his physicians over the proper

medical treatment alleges no more than a medical malpractice

claim, which is a tort actionable in state court, but is not

cognizable as a federal constitutional claim.” Owens v.

Hutchinson, 79 Fed.Appx. 159, 161 (6th Cir. 2003). 

Before addressing each specific medical condition, however,

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the Court also is compelled to note that a theme apparent from

the face of Mr. Hendricks’ complaints is his belief that costcutting measures are responsible for the alleged denial of his

medical care. To the extent that his complaint can be read in

this way, his limited allegations in this regard fail to provide

sufficient support for a deliberate indifference claim. As

explained by the Court of Appeals for the Third Circuit in

addressing conclusory allegations similar to those made here:

[T]he complaint’s allegation that [plaintiff] was

harmed by “policies to save money” is exceedingly

conclusory; the complaint does not provide any

indication of (1) what the relevant policies are, (2)

what basis he has for thinking that “policies to save

money” affected his medical treatment, or (3) what

specific treatment he was denied as a result of these

policies. More fundamentally, the naked assertion that

Defendants considered cost ... does not suffice to

state a claim for deliberate indifference, as prisoners

do not have a constitutional right to limitless medical

care, free of cost constraints under which law-abiding

citizens receive treatment. See Reynolds v. Wagner,

128 F.3d 166, 175 (3rd Cir. 1997)(“[T]he deliberate

indifference standard of Estelle does not guarantee

prisoners the right to be entirely free from the cost

considerations that figure in the medical-care

decisions made by most non-prisoners in our society.”);

Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.

2006)(“The cost of treatment alternatives is a factor

in determining what constitutes adequate, minimum-level

care, but medical personnel cannot simply resort to an

easier course of treatment that they know is

ineffective.” (citations omitted)); Caines v.

Hendricks, No. 05-1701, 2007 U.S. Dist. LEXIS 9453,

2007 WL 496876 at *8 (D.N.J. Feb. 9, 2007)(“[I]t is not

a constitutional violation for prison authorities to

consider the cost implications of various procedures,

which inevitably may result in various tests or

procedures being deferred unless absolutely

necessary.”).

Winslow v. Prison Health Services, 406 Fed.Appx. 671, 674-75 (3rd

Cir. 2011).

As further explained very recently by the court in Kietz v.

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Washington County, Pa., 2014 WL 1316129 (W.D. Pa. March 31, 2014)

(adopting Report and Recommendation),

“Resources are not infinite and reasonable

allocation of those resources, taking into account

cost, does not amount to deliberate indifference even

if a prisoner does not receive the most costly

treatments or his treatments of choice.” Brightwell v.

Lehman, No. Civ.A. 03-205J, 2006 WL 931702, at *8 (W.D.

Pa. April 10, 2006). In this regard, the Court notes

that the Eighth Amendment does not require a prison to

provide an inmate “with the most sophisticated care

money can buy.” United States v. DeCologero, 821 F.2d

39, 42 (1st Cir. 1987). Nor are prison medical

officers required to be blind to assessing risks and

costs of various treatment options. Furthermore, it is

also clear that a dispute regarding whether doctors

erred in this cost-benefit assessment, which is the

essence of the medical art, sounds in negligence only

and may not be case as a constitutional violation. 

Thus, it is well-settled that an allegation of “mere

malpractice of medicine in prison does not amount to an

Eighth Amendment violation. This principle may cover

... [an allegedly erroneous calculus of risks and

costs. ....” Harrison v. Barkley, 219 F.3d 132, 139

(2d Cir. 2000). 

Based on this reasoning, to the extent that Mr. Hendricks

suggests that cost considerations support a plausible claim of

deliberate indifference with respect to any of his medical

conditions, the Court does not agree. The Court will now turn to

each individual condition. 

i. Shoulder Prosthesis

Turning first to the claim relating to his shoulder

prosthesis, the Court previously had found that Mr. Hendricks’

complaint stated a claim against defendants Eddy and Gardner

based on allegations that they had denied the shoulder surgery

that specialists had determined Mr. Hendricks needed. Mr.

Hendricks has now refined his allegations to indicate that

defendants Hall, Christenson, Hale, Khan, and Ayres also were

part of the decision-making process that led to the denial of his

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recommended shoulder surgery. He also alleges that these

defendants instituted an alternate plan of care to address this

long-standing medical condition, but that in his view, this

amounts to no treatment at all. He explains in his reply that

the alternative plan of treatment is “to do nothing unless it is

life threatening.” He contends that he has suffered pain,

instability and numerous dislocations as a result of having been

denied surgery. Consistent with the original complaint, Mr.

Hendricks has stated a claim for deliberate indifference against

these additional defendants in his proposed amended complaint. 

ii. Crohn’s Disease

Turning to Mr. Hendricks’ claim regarding his Crohn’s

disease, with which he was diagnosed in 2002, the Court had

concluded on initial screening that there was not enough

information relating to the alleged denial of treatment and that

there were no allegations that defendants Ayres, Khan or Hale

denied necessary treatment. Consequently, this claim was

dismissed in its entirety. In his proposed amended complaint,

Mr. Hendricks provides some additional detail. He asserts that

he endured two years of bleeding and pain before he was granted a

meeting with defendants Hale, Khan, and Ayres. Dr. Hale led him

to believe that the results of a specialist ordered test were

normal and “months later” he was informed by the specialist that

this was not true. He further asserts that, at this later date,

the specialist ordered a specific treatment and Dr. Hale

initially told Mr. Hendricks that the course of treatment was

unlikely to be approved by defendants Gardner, Eddy, Hall,

Christenson and Ayres. Ultimately, although the proposed amended

complaint does not state when, the recommended course of

treatment was approved. Mr. Hendricks asserts that he hopes this

treatment will end the “pain, suffering, bleeding, and other

medical complications he has suffered at the hands of [these]

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Defendants....” 

Defendants contend that the fact that Mr. Hendricks now has

been approved for treatment precludes a deliberate indifference

claim. The Court does not agree. In his reply, Mr. Hendricks

argues that paragraphs 42 and 44 of the proposed amended

complaint allege deliberate indifference arising from delay. 

These paragraphs allege that Mr. Hendricks suffered severe pain

and bleeding, complained about these issues, and waited two years

for a meeting to determine a course of treatment. Additional

paragraphs assert that, once Mr. Hendricks was seen over Teleconference by a specialist, his access to treatment was then

further delayed by Dr. Hale’s alleged actions. Certainly, under

specific circumstances, delay in access to medical attention may

result in a violation of the Eighth Amendment. See Blackmore v.

Kalamazoo County, 390 F.3d 890, 896-898 (6th Cir. 2004). The

Court acknowledges that the details surrounding these allegations

are somewhat sparse. However, reading Mr. Hendricks’ allegations

as a whole, in the light most favorable to him, they are

sufficient at this preliminary stage to allow him the opportunity

at additional factual development on the issue of the alleged

delay in treatment for his Crohn’s disease. Consequently, the

motion to amend will be granted as it relates to Mr. Hendricks’

claim regarding his Crohn’s disease.

iii. Ventral and Parastomal Hernias 

As for Mr. Hendricks’ claims regarding his ventral and

parastomal hernias, the Court concluded on initial screening that

he had stated a claim only against defendant Gardner for denying

surgery determined by a specialist to be necessary. The

allegations of his proposed amended complaint do not indicate

that a specialist determined hernia surgery to be medically

necessary. Rather, the amended allegations state that Mr.

Hendricks was scheduled for the surgery clinic, was unable to

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keep that appointment, and was re-evaluated by Dr. Gardner who

concluded that surgery was not necessary until the hernias became

a life-threatening emergency. Rather than surgery, an alternate 

plan of care was instituted for Mr. Hendricks by the various

defendants. The proposed amended complaint does not elaborate

what this alternate plan of care is but Mr. Hendricks’ reply

states that the plan of care is “to do nothing unless it is life

threatening.” Beyond this, the proposed allegations merely

assert Mr. Hendricks’ personal opinions regarding the potential

for complications and his belief that the alternate plan of care

amounts to no care at all. 

A fair reading of the proposed amended claim indicates that

Mr. Hendricks has not been denied medical care with respect to

his hernias. The allegations indicate nothing beyond a

difference of opinion regarding the diagnosis and medical

treatment Mr. Hendricks has been provided. As discussed above,

this does not state a federal constitutional claim under the

Eighth Amendment. Westlake, 537 F.2d 857, 860. Mr. Hendricks’

belief that serious complications will result if he does not

undergo hernia surgery is simply that - his belief. Moreover,

while Mr. Hendricks alleges that he was “later informed by

another physician” that his hernias would have been repaired if

he were not incarcerated, this allegation does not suggest

deliberate indifference to his condition. Mr. Hendricks, as a

prisoner, is not entitled to “‘unqualified access to health

care.’” Jeffries v. Paulius, 2013 WL 5740152, *4 (W.D. Ky.

October 22, 2013), quoting Hudson v. McMillian, 503 U.S. 1,8

(1992); see also Winslow v. Prison Health Services, 406 Fed.Appx.

671, 674 (3rd Cir. 2011) (“prisoners do not have a constitutional

right to limitless medical care, free of the cost constraints

under which law-abiding citizens receive treatment”). 

Consequently, the motion for leave to amend will be denied as to

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this claim.

iv. Diversion Colitis

With respect to Mr. Hendricks’ claim regarding his diversion

colitis, the Court found that the original complaint failed to

provide sufficient details to provide any named defendant fair

notice of the claim. In his proposed amended complaint, Mr.

Hendricks has set forth more detail as outlined above. Further,

Mr. Hendricks’ argues in his reply that the allegations in

paragraphs 63 and 65 regarding “pain” he endured for two years

before treatment was approved and “pain and bleeding” he endured

during an eighteen-month lapse in treatment are sufficient to

state a claim relating to this medical condition. Because, as

discussed above, a delay in treatment, under certain

circumstances, can amount to deliberate indifference, the Court

concludes that Mr. Hendricks has stated a claim sufficient to

overcome defendants’ futility argument. See Blackmore v.

Kalamazoo County, 390 F.3d 890, 896-898 (6th Cir. 2004). 

Consequently, the motion for leave to amend will be granted as to

this claim.

v. Pain Management

Finally, with respect to Mr. Hendricks’ allegations

regarding pain management, the Court concluded on initial

screening that Mr. Hendricks had failed to state a claim because

he did not allege that any named defendant denied him a pain

specialist consult or otherwise denied him treatment. In his

proposed amended complaint, he alleges that defendants Gardner,

Eddy, Hall, Christenson, Hale, Khan and Ayres denied his pain

clinic consult and have prescribed an alternate plan of care that

consists of the drug Neurontin, which he contends amounts to no

treatment at all. However, these allegations indicate that Mr.

Hendricks has received medical attention, he simply has not

gotten what he wants. As such, these allegations demonstrate a

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difference of opinion but do not create a constitutional claim. 

Westlake, 537 F.2d at 860 n.5. Further, to the extent that Mr.

Hendricks suggests this treatment amounts to no treatment at all,

this conclusory statement is insufficient to state a claim. 

Consequently, the motion for leave to amend will be denied as to

this claim.

D. Remaining Claims 

Mr. Hendricks’ proposed amended complaint also attempts to

set forth a claim against defendants Mohr, Huffman, and Hudson in

both their individual and official capacities for their roles in

the implementation of a policy of cost-cutting measures allegedly

resulting in the denial of medical treatment. Mr. Hendricks

alleges, using language attempting to assert a supervisory

liability claim, that these individuals, in their roles with the

ODRC, directed medical staff to “stop all hospital trips and

surgeries unless it concerned a life or death situation.” Mr.

Hendricks acknowledges that these defendants may have been

unaware of his specific situation but asserts that, nevertheless,

they were aware of the risks of the policy. 

Allegations of direct involvement in constitutional

deprivations, rather than attempts to impose liability by virtue

of the doctrine of respondeat superior, are necessary in order to

hold an individual defendant liable under §1983. Monell v.

Department of Social Services, 436 U.S. 658 (1978). Although

there are other legal claims that can properly be asserted

against a supervisor simply because someone under his or her

supervision may have committed a legal wrong, liability for

constitutional deprivations under 42 U.S.C. §1983 cannot rest on

such a claim. Consequently, unless the plaintiff's complaint

affirmatively pleads the personal involvement of a defendant in

the allegedly unconstitutional action about which the plaintiff

is complaining, the complaint fails to state a claim against that

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defendant and dismissal is warranted. See also Bellamy v.

Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Mr. Hendricks has

not alleged the personal involvement of any of these defendants

in the conduct underlying any of his claims. In fact, he

specifically recognizes in the proposed amended complaint that

these defendants may have been unaware of his specific situation. 

Consequently, any claims against these defendants in their

personal capacities would not survive a motion to dismiss.

To the extent that Mr. Hendricks seeks to sue these

defendants in their official capacities, “a suit against a state

official in his or her official capacity is not a suit against

the official but rather is a suit against the official’s office.” 

Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989); see

also Grinter v. Knight, 532 F.3d 567, 572 (6th Cir. 2008). In

this case, Mr. Hendricks’ official capacity claims are construed

as against the State of Ohio. Accordingly, his claims for

monetary relief are barred by the Eleventh Amendment. Kentucky

v. Graham, 473 U.S. 159 (1985). 

An exception set forth in Ex parte Young, however, allows

for “actions against state officials sued in their official

capacity for prospective injunctive or declaratory relief.”

Thiokol Corp. v. Department of Treasury, Revenue Div., 987 F.2d

376, 381 (describing the holding of Ex parte Young, 209 U.S. 123,

28 S.Ct. 441, 52 L.Ed. 714 (1908)). Under the Ex parte Young

exception, “a federal court can issue prospective injunctive and

declaratory relief compelling a state official to comply with

federal law ... [because] it is beyond dispute that federal

courts have jurisdiction over suits to enjoin state officials

from interfering with federal rights.” S & M Brands, Inc. v.

Cooper, 527 F.3d 500, 507–08 (6th Cir. 2008) (quotation marks and

internal citations omitted). The Court in Young held that a suit

challenging the constitutionality of a state official’s action in

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enforcing state law is not considered to be against the State, so

Eleventh Amendment immunity does not apply. Ex parte Young, 209

U.S. 123, 150-156. “In order to qualify under Ex parte Young, []

an action must seek prospective relief to end a continuing

violation of federal law.” Carten v. Kent State University, 282

F.3d 391, 395 (6th Cir. 2002). 

The exception does not, however, extend to any retroactive

relief. Quern v. Jordan, 440 U.S. 332, 338 (1979). That is, if

a complaint against a state official is “based entirely on past

acts and not continuing conduct that, if stopped, would provide a

remedy to them, ... it ... does not come under the doctrine of Ex

parte Young.” Gean v. Hattaway, 330 F.3d 758, 776 (6th Cir. 2003)

(dismissing plaintiffs' claim for injunctive relief from state

officials after determining their complaint was based entirely on

past acts). 

 The test for determining whether the Ex parte Young

exception applies is a “straightforward” one. Verizon Md., Inc.

v. Public Serv. Comm'n of Md., 535 U.S. 635, 645 (2002). The

court considers “whether [the] complaint alleges an ongoing

violation of federal law and seeks relief properly characterized

as prospective.” Id. (alteration in original) (citation omitted);

Dubuc v. Mich. Bd. of Law Exam'rs, 342 F.3d 610, 616 (6th Cir.

2003). The focus of the inquiry remains on the allegations only;

it “does not include an analysis of the merits of the claim.”

Verizon, 535 U.S. at 646; Dubuc, 342 F.3d at 616. 

Mr. Hendricks’ complaint is based almost entirely on past

conduct. “[I]njunctive relief, even prospective injunctive

relief, against state officers named in their official capacities

‘should not be granted if the relief is tantamount to an award

for past violation of federal law, even though styled as

something else.’” Boysen v. Holbrook, 2007 WL 852198, *4 (S.D.

Ohio March 19, 2007) (Marbley, J.), quoting Barton v. Summers,

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293 F.3d 944, 949 (6th Cir. 2001). 

The only claim for which Mr. Hendricks arguably is seeking

prospective relief against these defendants is his claim relating

to the alleged denial of his recommended shoulder surgery. This

is so because it is the only claim where Mr. Hendricks alleges

that he continues to be denied recommended medical treatment. 

Further, this is so even though Mr. Hendricks seeks an injunction

ordering defendants to “immediately cease all forms of denial of

medical care to the Plaintiff,” “[a]llow the Plaintiff to

participate in the ‘collegial review’ process regarding his

medical care,” “[p]rovide any needed medical care previously

denied and currently being denied,” and “[p]rovide pain

management for the Plaintiff.” See Amended Complaint, ¶98, p.

12. The Court, however, is required to examine his claims

substantively rather than by the form in which they appear. 

Brown v. Strickland, 2010 WL 2629878, *4 (S.D. Ohio June 28,

2010), citing Lawrence v. Welch, 531 F.3d 364 (6th Cir. 2008). 

The substance of all but Mr. Hendricks’ shoulder surgery

claims relates to the alleged denial of medical treatment in the

past which may or may not have resulted from alleged actions of

these defendants in ordering medical staff to stop all hospital

trips and surgeries unless it concerned a life or death

situation. In order for Mr. Hendricks to prevail on these claims

against these defendants, the Court would have to issue a

declaration that this order was made in violation of Mr.

Hendricks’ Eighth Amendment rights. Only upon such a finding

could the Court conclude that Mr. Hendricks would be entitled to

any injunctive relief he may be seeking. Stated another way,

with respect to all remaining claims except the claim relating to

his need for shoulder surgery, Mr. Hendricks is seeking relief

“for a past, one-time decision of the [defendants] that

purportedly violated [his] federal constitutional rights.” S & M

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Brands, Inc., 527 F.3d at 509. This is clearly a request for

retrospective relief as it relates to the other remaining claims. 

The Eleventh Amendment not only bars retroactive relief where the

plaintiff is seeking monetary damages, but all retroactive

relief. Id. Consequently, any claims against defendants

relating to Mr. Hendricks’ diversion colitis and Crohn’s disease

would not survive a motion to dismiss. For this reason, the

motion to amend will be denied as it relates to defendants Mohr,

Hudson, and Huffman with respect to all claims but the claim

relating to Mr. Hendricks’ shoulder. 

IV. Order

For the reasons set forth above, the motion for leave to

amend (Doc. 32) is granted in part and denied in part as set

forth above. Specifically, the motion for leave to amend is

granted as it relates to Mr. Hendricks’ claims regarding his

shoulder prosthesis, Crohn’s disease, and colitis. Further, it

is granted to the extent that it alleges a claim relating to the

denial of Mr. Hendricks’ shoulder surgery against defendants

Mohr, Hudson, and Huffman in their official capacities. The

motion is denied in all other respects. Mr. Hendricks shall file

an amended complaint consistent with this order within fourteen

days.

APPEAL PROCEDURE 

 Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

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aside any part of this Order found to be clearly erroneous or

contrary to law.

 This order is in full force and effect, notwithstanding

the filing of any objections, unless stayed by the Magistrate

Judge or District Judge. S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp 

United States Magistrate Judge

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